JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Acquittal Appeal No.D-25 of 2013
Before;
Mr.
Justice Zafar Ahmed Rajput
Mr. Justice Irshad Ali Shah
Appellant: Fazalullah son of
Ariz Muhammad bycaste Maitlo, Resident of Dani Maitlo, Taluka Kingri, District
Khairpur.
Through Mr. Saeed Ahmed Panhwar,
advocate.
The respondents: Through Mr. Muhammad Ali Napar, advocate.
The State: Through Mr. Aftab Ahmed Shar,
Additional P.G for the State.
Date of Hearing: 18-01-2023
Date of Judgment: 18-01-2023
J U D G M E N T
IRSHAD ALI SHAH, J. It is
alleged that the private respondents with one Hazoor Bux (now has died) after
having formed an unlawful assembly and in prosecution of their common object committed
murder of Irshad by causing him lathies blows, for that they were booked and
reported upon. On conclusion of trial, they were acquitted of the said offence
by learned Ist Additional Sessions Judge, Khairpur vide judgment dated 19th
February 2013, which is impugned by the appellant/complainant before this Court
by the appellant by preferring the instant Crl. Acquittal Appeal.
2. It
is contended by learned counsel for the appellant/complainant that learned
trial court has recorded acquittal of the private respondents on the basis
improper assessment of the evidence, ignoring the recovery of incriminating
lathies from them, therefore their acquittal is liable to be examined by this
Court. In support of his contention, he relied upon cases of Muhammad Iqbal Vs. Muhammad Akram and
another (1996 SCMR 908), Muhammad Ashraf Vs. Tahir @ Billoo & others (2005
SCMR 383), Rajab alias Rajoo alias Nang and another
Vs. The State (2006 SCMR 175), Jannat Bibi Vs. Muhammad
Tayyab Hussain and others (2010 SCMR 149) and Anwar Shamim and another Vs.
The State (2010 SCMR 1791).
3. Learned Additional P.G for the State and learned counsel for
the private respondents by supporting the impugned judgment have sought for the
dismissal of instant Crl. Acquittal Appeal by contending that the impugned
judgment is well reasoned and is based on proper assessment of evidence.
4. Heard arguments and perused the record.
5. It was stated by the appellant in his FIR, which was lodged
on 24-02-2007 that he, Irshad, PWs Ariz Muhammad and Iqbal Ahmed were going
back to their village on their motorcycle, when reached adjacent to the brick-line
of Hazoor Bux, there came the private respondents with Hazoor Bux (now has
died), all were having lathies excepting Ihsan, who was having pistol, they at
the instigation of Ihsan, caused lathies blows to Irshad, who died on his way
to Taluka Hospital Pir Jo Goth. If narration made by the appellant in his FIR
is believed to be true, then the allegations against the private respondents
are general in nature. The appellant, PWs Iqbal Ahmed and Ariz Muhammad during
course of their examination have attempted to scribe the injuries to the
deceased to the private respondents specifically, but such attempt on their
part appears to be an improvement, which obviously is dishonest in nature. It
is hard to believe that four persons could travel through a single motorcycle,
same even otherwise has not been produced by them at trial. The presence of the
complainant and his witnesses is not indicated in sketch of wardhat prepared by
PW/Tapedar Allah Warayo. If for the sake of arguments, it is believed that they
were present at the place of incident, then they ought to have saved the
deceased by putting up resistance, which they have failed to put. The 161
Cr.P.C statements of PWs Iqbal Ahmed and Ariz Muhammad as per Investigating
Officer SIP Muhammad Ali were recorded on 25-02-2007. It was on next date of
lodgment of the FIR. No explanation to such delay is offered. The lathies have
been recovered from the private respondent with considerable delay to their
arrest; even otherwise, such recovery could hardly treated to be conclusive piece
of evidence making them to be guilty for the alleged offence. None has been
examined from the vicinity to ascertain the correctness of the incident. The
parties admittedly are disputed with each other over landed property. In these
circumstances, learned trial Court was right to acquit the private respondents
by extending them benefit of doubt, such acquittal is not found to be arbitrary
or cursory to be interfered with by this Court.
6. In case of State and
others vs. Abdul Khaliq and others (PLD 2011 SC-554), it has been held by
the Hon’ble Apex Court that;
“The scope of interference in appeal against acquittal is most narrow
and limited, because in an acquittal the presumption of innocence is significantly added to the
cardinal rule of criminal jurisprudence, that an accused shall be presumed to
be innocent until proved guilty; in other words, the presumption of innocence
is doubled. The courts shall be very slow in interfering with such an acquittal
judgment, unless it is shown to be perverse, passed in gross violation of law,
suffering from the errors of grave misreading or non-reading of the evidence;
such judgments should not be lightly interfered and heavy burden lies on the
prosecution to rebut the presumption of innocence which the accused has earned
and attained on account of his acquittal. Interference in a judgment of
acquittal is rare and the prosecution must show that there are glaring errors
of law and fact committed by the Court in arriving at the decision, which would
result into grave miscarriage of justice; the acquittal judgment is perfunctory
or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal
should not be interjected until the findings are perverse, arbitrary,
foolish, artificial, speculative and ridiculous.
The Court of appeal should not interfere simply for the reason that on the
reappraisal of the evidence a different conclusion could possibly be arrived
at, the factual conclusions should not be upset, except when palpably perverse,
suffering from serious and material factual
infirmities”.
7. The case law which is relied upon by
learned counsel for the appellant is on distinguishable facts and circumstances;
as such same hardly support the case of the appellant.
8.
In view of the facts and reasons
discussed above, the instant Crl. Acquittal Appeal fails and dismissed
accordingly.
J U D G E
J
U D G E
Nasim/P.A